The report makes fascinating reading and answers many common questions about the Courts
On the 21st October 1988 members of the Courts received a copy of a report by C. Gamble, Esq., M.A., Portreeve of Ashburton for the year 1960-1961; the 1,140th Portreeve. The accompanying letter was signed by Philip Pool (Bailiff) and at the time Michael Drake was the 1168th Portreeve.
The report gives a great deal of information regarding the Courts and answers many questions such as:
What is a presentment?
Where does the Portreeve sit in terms of the civic hierarchy?
What is a Portreeve and what is a Bailiff and who can take on these roles?
Who can be a Juror?
The report was issued in response to a challenge from a member of the Courts regarding the role of the Lord of the Borough in the proceedings and clarifies the position.
COURT LEET & COURT BARON
Both Courts are Borough Courts. The Manor Courts have not met in Ashburton since 1908. As Borough Courts their deliberations are only valid if they sit within the old Borough. Both St. Lawrence's and the Golden Lion were within the old Borough, but the Town Hall was not as it was within the Manor.
The distinction between freeholders on the Leet Jury and tenants on the Baron is essential to the existence of these Courts. Without such a distinction they become just a collection of residents and lose all their rights. If a member of the Leet Jury should sell his freehold he is no longer eligible for the Leet Jury. If he should than obtain a tenancy he becomes eligible for election to the Baron Jury. In the last century several Leet Jurors became Baron Jurors in this way.
The only qualifications, apart from the property ones, required of jurors in either court are that they shall not be clergymen of the Church of England and that they shall have been resident for at least one year. (Leet Jurisdiction Selden Soc.vol.5. BM-AC2176. p. xxv.ii).
The Leet Jury are entitled to elect the Bailiff, Ale Tasters and Bread-weighers who need not be members of the juries or even residents (except the Bailiff who must be a resident). The Baron Jury are entitled to elect the other officers such as pig drovers etc on the same qualifications.
The Portreeve can be a member of either jury or no jury
The Portreeve can only be elected by a properly constituted Court Leet. (Halisbury "Laws of England", v.8.p.765). This also applies to the Bailiff. (When in Ashburton in 1833, an improper election took place the Crown intervened and the costs against those improperly electing amounted to over £3000 (R.v.Woodley). - It is estimated that nowadays the costs in such a situation would considerably exceed £7000.
The Portreeve can be a member of either Jury or of no jury and non-residents have been elected in the past (affidavits in R.v. Woodley). The ownership of the Portreeve's and Bailiff's chains is vested in the Court Leet and only it can loan them to these officers for the period of their office.
Though the Court Leet is a Queen's Court (Halisbury, "Laws of England") as well as a Borough Court and the Court Baron is a Borough Court only there is no superiority in function of one over the other and they have equal powers of making "presentments". The mediaeval meaning of "a presentment" is "A statement on oath by a jury of a fact within their knowledge" (SOED). There is no suggestion of presenting something to someone. The juries can make a presentment of anything within their knowledge. The only limitation on this is that laid down in the case of Wood v. Lovett (6 Term Rep.511) where it is stated that such a court can present its Lord of a Borough for a public act but not for a private act (for which resort must be had to the ordinary courts). When the Lord of a Borough is a public body all its acts are public.
A NOTE OF PRECEDENCE
The Chairman of an Urban District Council has NO precedence whatever, except within his Council. (“except within his council" = vis-a-vis other councillors when acting as a Council, i.e., within the Council Chamber or appearing together as the Council).
He is in the same position in this respect as the Chairman of a County Council. "Unlike the Mayor of a borough the chairman of a county council has no precedence under any statute in the area of his jurisdiction". (Halisbury. vo1.24. p.374. .719)
The Statutory authority for this
The Local Government Act 1933 deals with the duties and position etc., of a Mayor in section 18. There is a sub-section (5) which reads:
"The Mayor shall have precedence in all places in the Borough: provided that nothing in this subsection Shall prejudicially affect His Majesty's royal prerogative". (this proviso means that the Sovereign, the Royal Family and the Lord Lieutenant and H.M.'s Judges shall have precedence over the Mayor. The only exceptions are the Vice-Chancellors of Oxford & Cambridge who have precedence over the Mayors of those cities, section 302).
The Local Government Act 1933 deals with the duties and position etc of a Chairman of an Urban District Council in section 33. Though many of the subsections correspond to those in section 18, there is NO subsection corresponding to subsection (5) in section 18.
By the rules of interpretation of statutes this means that Parliament was careful not to give to chairmen of U.D.Cs that which it gave to Mayors.
So much is this the case that none of the chief authorities on Local Government think it necessary to mention any precedence for Chairman of U.D.C (Hart. p.6I- (for mayors); p.50 & 51 (for chairmen). (Cross. p.49 penultimate line, & p.56). (Jackson says of Chairmen, p.36, there is "no special ceremony in connection with their work").
Jackson does say, p.36, "In a territory in which there is no existing head of an area, like a county, there seems no reason why the Chairman of the council should not...be accorded a position of importance comparable to that of a mayor". Obviously a Portreeve who has the Common Law position of "A head" (v.i.) prevents such where he exists.
The position then is:- The Crown in Parliament has spoken. The subject must obey whether be likes it or not.
Authorities quoted above
"Halisbury" - Halisbury's "Laws of England". 3rd & current edition. An Authority of the first importance.
"Hart" - "Hart's Introduction to the Law of Local Government and Administration". 6th & believed current edition. A book which it used to be considered should be in the private possession of every councillor.
"Cross" - "Local Government Law" by C.A.Cross, 2nd & current edition. "Jackson" - "The Machinery of Local Government" by B.N.Jackson 1959 reprint.
The reason why a Mayor has a position and precedence not accorded to other Local Government chairmen of authorities
Many communities already had "heads" under the Common Law of England-They were known by various names, e.g., Senior Bailiff, Bailiff, Portreeve and other names.
The Mayor of the borough is the Common Law (civic) "head" and the Chairman of the Council
In the 19th century reorganisation it was decided that where any such community was to became a "borough" the rights and precedence of any formerly existing "head" should be incorporated in the office of Mayor, and that future boroughs should have a mayor of a similar type.
In other words...the reason why a Mayor has this peculiar precedence is that he is, at the same time, the Common Law "head" and also the statutory local government chairman. Such a double position is not given to any other local government official, not to a chairman of a county council nor to a Chairman of a district council. Thus the post of Sheriff is separated from the post of Chairman of the County Council and the Sheriff has precedence; the post of Senior Bailiff, Bailiff or Portreeve, (other names are used in some places), is separated from the post of Chairman of the District Council and the "head" has precedence. The local government officials have no precedence.
The reason why Local Government officials have no precedence is bound up with the whole system of administration and legislation in England and is most complicated. It is often expressed in the phrase "Councils are NOT local Parliaments". (cf.Jackson. p. 16). Note: the Prime Minister had no precedence until it was given him by Royal Warrant on 2nd December 1905. It is also bound up with the doctrine of ultra vires, since it would be ultra vires for a chairman of a council to claim precedence.
THE POSITION OF PORTREEVE
Portreeves can only be abolished by Act of Parliament... the Portreeve of Ashburton has not been abolished
This was originally a royal appointment (see pre-Conquest legislation). In or about the time of Richard I the right to elect the portreeve was given to certain courts leet. His position is to be the Common Law "head" of the area (generally some sort of burgh). His actual pawers have varied throughout history. It is quite untrue to any that he ever had "the power of life and death". A portreeve elected by any other body than a court leet would be invalid and illegal, (cf. Halisbury.2nd ed.vol.8. p.765). Portreeves can only be abolished by Act of Parliament. Eight were abolished by the Municipal Corporations Act 1883. The Portreeve of Ashburton has not been abolished. A Portreeve may appoint a deputy (Green v.Davie. 3 B & Ald.60. New 186).
THE POSITION OF BAILIFF
the same as a portreeve... except where there is a portreeve, then he ranks immediately after
This is in all respects the same as that of a portreeve and he has the same precedence. But where there is a portreeve, then he ranks immediately after the portreeve. In the absence of a portreeve (and most places that have a Bailiff have no portreeve) the Bailiff has all the same privileges and precedence. He is sometimes known as the "Senior Bailiff" or the "Provost".
It is important to notice that this kind of Bailiff has nothing to do with the bailiff who collects rents etc., He is of the same kind as "The Bailiff of Jersey". "In the Salle des Etats..the senators, constables and deputies debate and make the island laws. The Bailiff presides from a Chair raised a few inches above that of his neighbour the Lieutenant-Governor -this is to emphasise his supremacy in civil matters". He is also the Bailiff mentioned in the Book of Common Prayer. Though the office remains in many districts those of his powers which are mentioned in that book have been taken away by statute (whereat Vicars rejoice).
SOME CONNECTED MATTERS
Chairman of the U.D.C. & "Lord of the Borough"
The Chairman is not Lord of the Borough. The Corporate Body of the Council is Lord of the Borough.
Though the Ashburton UDC first met on April 15th 1898 it bad no connection with the post of Lord of the Borough until 1927 when it received this post (by purchase or gift) from Mrs. Ralph Woodley.
It is said that the U.D.C. elect or appoint their Chairman to be “Representative of the Lord of the Borough" at Portreeval affairs and Courts Leet & Baron. I am informed by a Professor of Local Government & Politics that such an act would be ultra vires, invalid and illegal.
The Lord of the Borough has no right to preside at meetings of the Court Leet or Court Baron. This arises from the fact that the reason why these courts were inserted into the system was so that they might control both the Lords of the Boroughs and the general public and "no man can be a judge in his own case". Such courts often to make presentments against their Lord. Indeed most modern courts leet seldom do anything else! There is a presentment of the Ashburton courts in 1949 to the effect that the Lord of the Borough shall preside over joint meetings of the courts. This presentment appears to have been invalid from its inception, since these courts cannot make a presentment contrary to the laws of the realm.
In the 12th or 13th century some Lords of Boroughs and Lords of Manors did in fact preside over their courts. They were thrown into prison by the Crown (Pollock Maitland, "History of English Law before Edward I", chapters on Franchise courts & Borough courts). I know of only one other instance outside Ashburton. A Rural District Council became Lord of a Manor. and its chairman presided. But after one year's courts it quickly changed this.
The Lord of a Borough or Manor at a Court usually sits beside the Steward who, if it is a Manor court, presides. (as at Holne Court Baron today). Several Local Government bodies have become Lord of Manor or Borough. They usually, sit in a semi-circle behind the Steward in a Manor Court, or behind the Bailiff or other official, e.g. Portreeve, who presides in a Borough Court.
The lord of Borough (or Manor is entitled to appoint a steward (provided certain conditions are observed) or "a person to act as Steward".
The Ashburton U.D.C. is also Lord of the Manor of Ashburton. But the Manor Courts (Both Leet & Baron) ceased to exist in 1905 before the T.D.C. became Lord.
Borough & Manor at Ashburton
The Borough was created by separating certain properties out of the Manor. These properties were scattered all about the area of the present town. They alone carried parliamentary borough votes before 1867. It is probably impossible now to find out which properties were in the borough and which in the manor, but their status is known in quite a number of eases. For instance it is known that St. Lawrence's was in the Borough and that Mr. Hatch's cottage and the Town Hall were in the Manor. It is a strict rule that Borough Courts must be held within the Borough and Manor Courts within the Manor. Hence the courts at present functioning cannot be held in the Town Ball, but can be held in the Golden Lion and certain other pubs, because they are Borough Courts and Golden Lion is a Borough. It is solecism to mention "the Lord of the Manor" in St. Lawrence's or in connection with the Portreeve. It must be "Lord of the Borough".
Both the Court Leet & the Court Baron as at present held are Borough and not Manorial Courts.
The Court Leet is a Queen's Court. Its continued legal existence is ensured by the Sheriffs Act 1887, sec.43 (i)
"Every court leet, court baron, law day, view of frankpledge, or other like court which is held at the passing of this Act shall continue to be held on the days and in the places heretofore accustomed, but shall not have any larger powers, nor shall any larger fees be taken thereat than heretofore, and any indictment or presentment found at such court shall be dealt with in like manner as heretofore".
This act is still definitely in force which disposes of any suggestion that we are merely indulging in a pageant. Indeed whoever administers the oaths or presides thereat or takes them would be liable to very severe penalties under the Statutory Declarations Act if it were not a real court.
Courts Baron have not been abolished, but they have been rendered unnecessary for property purposes by the Real Property Act 1922.
The word "Presentment"
Presentments are simply a statement of a fact within the jury's knowledge
The Middle English meaning of this word is "a statement on oath by a jury of a fact within their knowledge"; and it is probable that the question which Ashburton periodically discusses "to whom it is presented?" has no relevance. It means "to make judicially present" rather than to mike a present to someone. But the question of who was the proper recipient if anyone was much discussed in connection with Norwich presentments. The general opinion seems to be that the Crown is the object, or perhaps the townspeople in general. It is certain that the suggestions that these motions are presented to the Lord of the Borough for his action are poppycock.
A court can present its Lord of the Borough for a public injury but not for a private one. While the Lord of the Borough is a local government authority all its acts are bound to be public!
There are several presentments of the Lord of the Borough of Ashburton for not repairing the Bull Ring in the 18th century.
These juries are "Juries of Inquiry & Presentment" which are quite different things from the ordinary petty juries which are "Juries of Issue & Assessment". (Halisbury, 3rd.ed-vol.23.p.22 & 23).
Who can be a juror?
Anyone, provided he is not a clergyman of Eclesia Anglicana and has resided for over a year.
It sometimes appears that the U.D.C. appoints certain of its councillors to be on the Baron Jury. If it did this it would undoubtedly be most illegal. It would be ultra vires. As the U.D.C. is the Lord of the Borough it would be appointing part of itself to be on the jury which would appear to be the greatest example of "packing a jury" known in English history! Up to 1961 it was careful to say merely that it "recommended certain persons to the Court Baron for election by them". This would be quite in order. In that year the public press stated that the Council had elected certain persons to the jury. The Town Clerk was made to correct this in subsequent issues of the papers. But I have heard, whether correctly or not, I do not know, that the wrong description has again appeared.
Telegrams of congratulation
In 1960 it was stated by a Councillor that telegrams of congratulation to royalty on events each as births, marriages etc., were always sent on behalf of the Chairman of the Council and Portreeve and Bailiff and that replies were always received addressed only to the Chairs of the U.D.C.
So an examination was made of the last 18 cases and it was found that this statement was incorrect.
Out of 18 replies:
11 were addressed to the Portreeve alone.
4 were addressed to the Chairman, but particular circumstances were obvious.
3 disclosed no evidence.
So, when the birth of Prince Andrew was imminent, the Bailiff caused discreet enquiries to be made at the office in the Palace as to what they would consider proper. The reply was that the Portreeve & Burgesses should send one telegram and the Council another telegram. This was done and two replies received.
Who receives royalty who visit the town?
The Portreeve receives royal visitors
When the Prince of Wales, later Edward VIII, came on June 10th 1919 the Portreeve received him in the Bull Ring and presented the Vicar, the Bailiff and the Chairman of the U.D.C. in that order and the Portreeve made a speech. (Western Guardian, Western Morning Mews, Western Times).
When Prince George, later Duke of Kent, came in May 1932, the Portreeve was also Chairman of the U.D.C. and received him in the dress of a Portreeve. It is significant that the letter of thanks for being received, sent by the equerry from St. James's Palace, was addressed to the Portreeve alone. This letter is extent and is under the care of the Portreeve.
Who can be a juror?
In addition to the qualifications on the last page, there is of course the property qualification for Leet Jurors that they must be freeholders. This distinction of freeholders in the Leet and others in the Baron is of the essence of the whole system. Without it the two bodies could not claim to be Leet Jury or Baron Jury. There is a custom in Ashburton that representatives of a freeholder with status of "manager" can be considered eligible for Leet Jurors. This would seem a legitimate development. But some remnant of the old distinction must be preserved or there will only be a conglomeration of people with no claim to either post. It can be suggested that the current dissatisfaction among the Baron Jurors is because a completely irrelevant idea of social difference has crept in of recent years. The Baron Jury might with advantage learn to be more proud of their position as such.
There is no qualification for being a Portreeve. In the past some have not even been resident in the town.